Brandie Rose Malicoate v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 31 2019, 9:38 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jared Michel Thomas Curtis T. Hill, Jr.
JMT Law, LLC d/b/a Thomas Law Attorney General of Indiana
Evansville, Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandie Rose Malicoate, December 31, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1938
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82D03-1811-F2-7370
Bailey, Judge.
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Case Summary
[1] Brandie Rose Malicoate (“Malicoate”) challenges her fourteen-year aggregate
sentence imposed following her pleas of guilty to Dealing in
Methamphetamine, as a Level 2 felony,1 and Carrying a Handgun Without a
License, as a Class A misdemeanor.2 She presents the issue of whether her
sentence is inappropriate. We affirm.
Facts and Procedural History
[2] On November 1, 2019, Malicoate was detained in a traffic stop in Evansville,
Indiana and found to be in possession of an unlicensed handgun, 26.5 grams of
methamphetamine (packaged in four individual baggies), a digital scale,
MDMA pills, and $1,270.00. After her arrest and booking into jail, Malicoate
asked to speak with police officers. She advised the officers that she had been
traveling to New Albany, Indiana several times per week to bring back
methamphetamine for distribution in Evansville. According to Malicoate’s
estimate, she had sold approximately forty-eight pounds of methamphetamine
in Evansville during the preceding four months. She offered to cooperate with
law enforcement drug interdiction efforts.
1
Ind. Code § 35-48-4-1.1(a)(2).
2
I.C. § 35-47-2-1.
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[3] Malicoate was released from jail but instead of cooperating with law
enforcement, she absconded. Malicoate was re-arrested and held without bond.
On April 3, 2019, she pled guilty to charges of Dealing in Methamphetamine
and Carrying a Handgun Without a License. On June 17, 2019, she received a
sentence of fourteen years for the dealing offense and a concurrent one-year
sentence for the handgun offense. On July 31, 2019, the trial court granted
Malicoate’s motion to file a Belated Notice of Appeal pursuant to Indiana Post-
Conviction Rule 2.
Discussion and Decision
[4] Pursuant to Indiana Code Section 35-50-2-4.5, a person who commits a Level 2
felony shall be imprisoned for a fixed term of between ten years and thirty
years, with an advisory sentence of seventeen and one-half years. Pursuant to
Indiana Code Section 35-50-3-2, a person who commits a Class A misdemeanor
shall be imprisoned for not more than one year. Malicoate contends that her
sentence is inappropriate and asks that we revise it to the minimum, ten-year
aggregate sentence, because she pled guilty and has no felony criminal history.
[5] Under Indiana Appellate Rule 7(B), this “Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” In performing our review, we assess “the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell v.
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State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is
an “attempt to leaven the outliers.” Id. at 1225. Appellate courts thus “reserve
our 7(B) authority for exceptional circumstances.” Taylor v. State, 86 N.E.3d
157, 165 (Ind. 2017).
[6] The “considerable deference” given to the trial court’s sentencing judgment
“should prevail unless overcome by compelling evidence portraying in a
positive light the nature of the offense (such as accompanied by restraint,
regard, and lack of brutality) and the defendant’s character (such as substantial
virtuous traits or persistent examples of good character).” Stephenson v. State, 29
N.E.3d 111, 122 (Ind. 2015) (citing Cardwell, 895 N.E.2d at 1222).
[7] The nature of the offense involves the details and circumstances of the crime
and the defendant’s participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App.
2017). Dealing in Methamphetamine is a Level 2 felony if the amount of the
drug is at least ten grams. I.C. § 35-48-4-1.1(a)(2). Malicoate possessed with
intent to deliver more than twice that amount of methamphetamine,
specifically, 26.5 grams.
[8] The character of the offender is found in what courts learn of the offender’s life
and conduct. Perry, 78 N.E.3d at 13. Malicoate’s decision to plead guilty
indicates some acceptance of responsibility for her actions; however, the
decision to plead guilty was likely pragmatic, as Malicoate was found in
possession of individually-packaged methamphetamine, a large quantity of
cash, an unlicensed handgun, MDMA pills, and digital scales with
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methamphetamine residue. She admitted to her recent sales of an estimated
forty-eight pounds of methamphetamine. Finally, her decision to flee instead of
fulfilling her promise to cooperate with police does not speak well of her
character.
[9] To the extent that Malicoate argues “the trial court gave no weight to her lack
of criminal history, no weight to the hardship upon her dependents, no weight
to her physical health issues, and absolutely no weight for her guilty plea,”
Appellant’s Brief at 15, we cannot provide the requested relief. The weight
given to the trial court’s reasons for imposing a sentence is not subject to
appellate review. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified
on reh’g, 875 N.E.2d 218. Malicoate did not have a felony criminal history.
However, she had not remained a law-abiding citizen up until the current
offense.
[10] Having reviewed the matter, we conclude that the trial court did not impose an
inappropriate sentence under Appellate Rule 7(B), and the sentence does not
warrant appellate revision. Accordingly, we decline to disturb the sentence
imposed by the trial court.
Conclusion
[11] The sentence imposed upon Malicoate is not inappropriate.
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[12] Affirmed.
Kirsch, J., and Mathias, J., concur.
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